Joint family property cannot be deemed to be partitioned without substantial proof of a valid relinquishment deed; evidence of joint ownership remains unless definitively disproved.

JUDGMENT :

V. SRISHANANDA, J.

Heard on admission of the appeal, learned counsel for the appellant, Sri. C. Sunil Kumar Patel and Sri. K.R. Ramesh, learned counsel for the contesting respondents.

2. The legal representatives of the original defendants have filed the present appeal challenging the judgment and decree passed in OS No.108/2003 confirmed in R.A.No.147/2012 insofar as item No.1 of the suit schedule properties.

3. For the sake of convenience, the following are the properties which were subject matter of the suit as per the plaint, as under:

“1. The land bearing Sy.No.40/2, measuring 7 acres 12 guntas, assessed at Rs.5.79 ps. situated at Haralur village, Gulur Hobli, Tumkur Taluk, bounded on:

East: Land of H. Basavaraju son of Shivarudraiah.

West: Land of Chikkaravaiah son of Lakkanna & Narasimhaiah of Kummanjipalya.

North: Land of Muddainh son of Basavaraju of Kummanjipalya.

South: Land of Nanjamari Shivanna s/o Rudrappa.

2. Land bearing Sy.No.4/2, and 4/3, totally measuring 3 acres 4 guntas, and 6 acres 6 guntas, assessed at Rs.2.36 ps. and Rs.4.75 ps. respectively, out of which 1/5^th share of Hissa of the plaintiff and defendants, measuring 1/5^th Hissa, bounded on:

East: Rudraradhya s/o Revenappa's Hissa.

West: Land of Gangalakshmamma, North: Rajanna s/o Gangaiah's land.

South: Land of Chandranna.

This land is situated at Haralur village, Gulur Hobli, Tumkur Taluk.

3. Vacant site bearing khatha No.148/31, situated at Haralur village, bounded on

East: Road.

West: Vacant site.

North: Site No.121/126.

South: House of Rudrappa.

4. Vacant site bearing khatha No.121/126 of Haralur village, bounded on:

East: Road.

West: House of Narasimhaiah.

North: Private palu.

South: Vacant site bearing No. 148/31.

5. Mud roofed house situated at Haralur village, bounded on:

East: Road,

West: Private property.

North: House of Kariyappa South: Private Property.

Bearing Khaneshumari No.71/80-81 in the name of Kempa S/o Rama.”

4. The facts in the nutshell, which are utmost necessary for disposal of the present appeal are as under: 4.1 The Plaintiffs filed a suit for partition and separate possession of their half share in the suit schedule properties and to declare that proceedings in OS No.346/64, which ended in Execution No.298/67 and the Sale Deed dated 30.01.1971, as not binding on them. As per the plaint averments, Ramaiah was the common propositus. He had two sons namely, Kempaiah and Puttaramaiah. The plaintiffs are the sons of Puttaramaiah and they had two brothers by name Chikkaramaiah, who died unmarried in the year 1967 and another brother by name Kencharamaiah, who is unheard of since 1973.

4.2 Kempaiah had four sons who are the present defendants and during the pendency of the suit, defendant No.3 died and his wife and children are brought on record. 4.3 It is the further contention of the plaintiffs that the suit properties are ancestral and joint family properties and there is no division. Father of the plaintiffs, after marriage lived in Heggunda Village, to carry on the business. As such, brother of Puttaramaiah by name Kempaiah was looking after the properties. Such being the case, plaintiff No.1 filed an application for transfer of khatha in respect of the land in Sy.No.40/2 to half extent before the Tahsildar on 16.11.1990 and came to know that there was an objection filed by the defendants Nos.1 and 2. Dispute was resolved in RRT No. 68/90-91 and names of the plaintiffs were ordered to be entered in the revenue records.

4.4 Against the said order, defendants filed an appeal before the Assistant Commissioner in RRT Appeal 9